Gotham Gazette

The Place for New York Policy and politics



Hope and Recommitment on World AIDS Day 2016

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Kelsie Louie, the author, last World AIDS Day (photo: Donna Aceto)

For over 35 years, HIV has plagued communities around the world. In the initial years that followed its discovery, our elected officials and social institutions failed to address the epidemic as it unfolded. Those who were falling ill faced tremendous danger and anxiety with no recourse in sight. Organizations like GMHC, ACT UP, Housing Works, and so many others were founded to not only provide a support system and educate the public, but to fortify a voice that would compel our leaders to take the AIDS crisis, and its victims, seriously.

This World AIDS Day -- Thursday, December 1 -- marks not only a day of remembrance and mourning for those we have lost, but also a turning point in our efforts to defeat the epidemic. After decades of deficient and half-hearted policies to address HIV, the United States has a National HIV/AIDS strategy, and, with aggressive pledges to end the epidemic in their respective jurisdictions, communities such as New York, Washington D.C., San Francisco, and Fulton County, Georgia are leading the charge to end AIDS.

Aside from pledges and press conferences, we have actually seen elected and government officials affirm their commitment to these efforts.

This past summer, officials in Fulton County, Georgia, unveiled an ambitious plan to eradicate HIV in the Atlanta metro area. According to the federal Center for Disease Control (CDC), an astonishing 1 in 51 Georgians will be diagnosed with HIV in their lifetime. County officials have set out to provide free, routine opt-out HIV testing in all healthcare settings and jails to decrease the number of new HIV diagnoses by 25 percent, increase the number of free condoms distributed from 2.3 million to 3.5 million, and link 85 percent of people who test positive for HIV to care within three days.

Here in New York State, Governor Andrew Cuomo’s Ending the Epidemic Blueprint has served as a catalyst to expand funding and services across the state. For instance, in New York City, we have been successful in expanding rental assistance benefits to almost all low-income individuals living with HIV.

The blueprint has produced tangible results. On Tuesday, the New York City Department of Health released data showing that the number of new infections has dropped to 2,493 in 2015, the first time that annual infection figures have dropped below 2,500 since the HIV crisis began. The Department also made a monumental announcement – for the first time, in 2015, there were no mother-to-child HIV transmissions.

Until we see similar progress in all places, not just Fulton County and New York, our work is not complete. The South now experiences the greatest burden of HIV infection, illness, and deaths of any U.S. region, and lags far behind in providing quality HIV prevention and care. At-risk groups nationwide, particularly communities of color, transgender women, and men who have sex with men, continue to face institutional barriers that prevent easy and affordable access to testing, treatment and prevention.

I have great concern about the current national climate, which includes significant uncertainty over the future of federal health care policy. Depending on the course taken by Congress and the next President, we may be forced to confront new challenges in reducing HIV transmission rates and ending the epidemic. Local, regional, and state governments may be forced to pick up the torch in order to avoid moving backwards. Right now, we need more local elected leaders to act on ending HIV and AIDS in their communities. When they do, I am confident that we will collectively end this epidemic.

Thirty-five years ago, the feat of ending AIDS appeared impossible, but today, I believe our darkest days are behind us. We have overcome past inaction and complacency, and we must proactively continue to fight because we cannot afford to waste any opportunity to create an AIDS-free generation.

Kelsey Louie is the CEO of Gay Men’s Health Crisis. On Twitter: @GMHC.

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New York's Charles Schumer and the Future of the Nation

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Sen. Schumer (photo via @SenSchumer)

New York's Charles Schumer has suddenly become the most important Democratic leader in the country through his selection as Minority Leader in the United States Senate. Schumer’s role over the next few years will be critical in shaping the nation's future.

Leading 46 Democrats, Schumer looks back on a net loss of several Senate seats since 2009 and forward to 2018, when 10 Senate Democrats will be up for re-election in states won by Donald Trump. Schumer is said to get along well with Republican Majority Leader Mitch McConnell, but says he will draw the line at being too accommodationist with Trump and the Republicans. "When he is opposed to our values, we're going to go after him tooth and nail," Schumer said of President-elect Trump. "For instance, we're not going to let him repeal Dodd-Frank or the rules we've put in place to limit Wall Street."

Democrats will oppose Trump every time he takes "a dark, divisive turn," Schumer has promised. Already, Schumer has charged that the choice of former Breitbart News chief Stephen Bannon as White House senior counselor and strategist means that "dangerous and bigoted ideas will have a seat at the table."

A New Yorker with flair, drive, and self-confidence
Senator Chuck Schumer has a good deal of New York support, enthusiasm, and momentum behind him. He easily beat his Republican challenger, Wendy Long, in his 2016 re-election campaign, garnering about 70% of the vote (Democratic presidential nominee and former New York Senator Hillary Clinton, by contrast, got about 58% in New York).

Over his 19-year career in the Senate, Schumer has come across as an energetic, hard-charging New Yorker. When he was elected to the Senate in 1998, he made a pledge that he has kept, to visit each of New York's 62 counties at least once a year. The biographical sketch on his Facebook page says "he has built a reputation as a leader in finding common-sense solutions to national issues and a tireless fighter for New York."

Schumer has expressed a vision for rebuilding and re-energizing the national Democratic Party. "We need to have a party that works on behalf of all Americans," he said in his first speech as minority leader. "And a bigger, bolder, sharper-edged economic message that talks about how people in the middle class and those struggling to make it there can do better, but also deals with the unfairness in the American economic system, will unite our caucus and speak to the blue-collar worker in West Virginia and Michigan as well as the people who live along the coasts."

What is Schumer likely to do? Looking back along two historical paths may give us some guidance.

Schumer's revealing 2007 book
Senator Schumer's book “Positively American: Winning Back the Middle Class Majority One Family at a Time,” published in 2007, offers insights into the senator's thinking and strategies.

Three themes in particular stand out.

1. Republicans are skilled at getting their "message" across to voters. Schumer contended that the Republican Party was mostly dominated by "theocrats" (conservatives who dislike government and want to minimize it) and "economic royalists" (people who want unfettered property rights and minimal or no government regulations or restrictions on business). Neither group represents mainline American values, Schumer says. But Republicans have used three shrewd marketing tactics, driven by the right-wing media: 1) Keep stressing that "What's good for the wealthiest is always, always, good for America."; 2) practice politics of fear and division; and 3) identify issues that connect with their values and then repeatedly return to them.
That worked for Republicans in 2004 and 2006, Schumer said. It sounds like some of his analysis about what happened in 2016.

2. Democrats need to really understand the middle class. Schumer argued that the Democrats had better policy positions than their opponents but did not connect well with the vast majority of voters. To help sharpen their strategies, Schumer invented and inserted in his book a hypothetical middle-class family, headed by Joe and Eileen Bailey, which he placed in Massapequa, Long Island. They should be supporting Democrats, but in recent elections, they tilted toward Republicans.

Schumer presents a detailed, insightful profile:

They have a house, a mortgage, property taxes that never cease to go up, monthly payments for two cars, and three kids in the local public schools. They both work because they want to and because they need to...The Baileys are generally optimists. They do not see impending doom on the horizon, though they sometimes worry that America's place in the world is under threat...But they are increasingly bothered by nagging worries. They're worried about terrorists who are...bent on killing Americans...They also worry about economic forces that are beyond their control...They don't see how they can possibly pay for college for their children. They haven't lost jobs to outsourcing, but some neighbors have...They are bothered by the corporate excesses that they read about in the paper [and the] moral excesses they see all around them...They believe that everyone deserves a fair chance and are sympathetic to those who are less fortunate than they are...

Politically, they are up for grabs...they are part of the new wave of independents...They support government when they feel it supports them, which isn't often...Most of the time, it seems to them that government is focused on someone else -- the very poor or the very rich.

That all sounds familiar. The electorate in 2016 was very divided, characterized by vague feelings that something is amiss in the nation, and mistrustful or cynical about both major parties.

3. Democrats can win by offering concrete, credible policies and solutions that appeal to the middle class. Over half of the book (pp. 117-263) is devoted to advancing and discussing specific policy proposals. Schumer titled his proposals with a clever catchphrase, "The 50% Solution." Here are a few examples (some are dated; but others still have a ring of relevance):

*Increase reading and math scores by 50%
* Increase the number of college graduates by 50%
*Reduce illegal immigration by at least 50% and increase legal migration by up to 50%
*Reduce our dependence on foreign oil by 50%
*Reduce cancer mortality by 50%
*Reduce abortions by 50%
*Reduce tax evasion and avoidance by 50%
*Increase our ability to fight terrorism by 50%

Nine years later, this year, Schumer is again patiently explaining that it is not enough just to oppose what the other party is trying to do. Political leaders have a responsibility to advance specific ideas and credible, concrete proposals in terms that people can understand and appreciate. “Positively American” is a good model, and many of its ideas still seem relevant.

Schumer's legacy from New York's previous eminent U.S. Senators
A second way of discerning Schumer's possible directions and influence is to look back at five of his predecessor U.S. senators from New York. Each had outsized talent, influence, and accomplishments, sometimes leaving legacies that were surpassed only by those of presidents.

*Daniel P. Moynihan (D, 1977-2001) came to the Senate after a long career, including White House advisor, Counselor to the President, and U.S. Ambassador to the United Nations. He had served under two Democratic presidents, Kennedy and Johnson, and two Republicans, Nixon and Ford, and was exceptionally skilled in bi-partisan negotiating and finding common ground. He was also a notable scholar, authoring 15 books and studies, including several influential works on important policy issues.

As Senator, Moynihan blended academic erudition, wit, and experience. He fought to get New York's fair share of federal aid. He moderated his strong anti-Soviet views and opposed the Reagan administration's hawkish Cold War policies. Taking on complex issues, he helped shape the Tax Reform Act of 1986. He supported protection of the environment and systematic transportation policy. But he maintained his position as a highly respected, independent-minded statesman by breaking with the liberal positions of his party on several occasions. For instance, as chair of the Senate Finance Committee in the 1990s, he opposed President Bill Clinton's proposal to expand healthcare coverage to all Americans, asserting that the dimensions of the health care crisis in the nation had been exaggerated.

*Herbert H. Lehman (D, 1949-1957), a former governor, was distinguished in the Senate for his defense of civil liberties. He was one of the first and most persistent opponents of Senator Joseph McCarthy's irresponsible crusade against alleged Communist influence in the government. He challenged McCarthy to produce proof, questioned his sources and tactics, and complained about his browbeating of witnesses McCarthy hauled before his investigating committee.

Lehman gave speeches in McCarthy's home state of Wisconsin, denouncing the senator and his followers for inciting fear to advance political ambition. He helped lead the campaign that resulted in McCarthy's censure by the Senate in 1954 for his ruthless, reckless tactics. Lehman voted against the Internal Security Act of 1950, calling it a threat to civil liberties. He was particularly alarmed about a provision giving the President authority to round up and detain people when there was a "reasonable ground" to believe that they will engage in acts of espionage or sabotage.

*Robert F. Wagner (D, 1927-1949) proposed initiatives to help organized labor and combat unemployment as the Great Depression began to grip the nation after 1929, but his efforts were rebuffed by Republicans. He became one of the chief critics of President Herbert Hoover's inaction to combat the Depression, calling for bold, national action. When Democrat Franklin D. Roosevelt was elected president in 1932, Wagner became one of his key advisors and policy architects. He was so influential that Roosevelt once called him "the co-pilot of the New Deal." Wagner drafted and sponsored several key pieces of legislation, including the National Industrial Recovery Act (1933), National Labor Relations Act (the "Wagner Act") (1935), and Social Security (1935).

*Elihu Root (R, 1909-1915) was one of the nation's most influential and respected statesmen for more than a quarter century. He came to the Senate after stints as U.S. Secretary of War and Secretary of State, where he had advised a number of presidents on several issues and helped transform the United States into a world power. He helped persuade business interests and press leaders to support an activist foreign policy and measured economic reform, a tactic he continued to champion as senator.

In 1912, as a result of his work in bringing countries together through cooperation and arbitration, Root was awarded the Nobel Peace Prize. That year, he helped sidetrack his old friend Theodore Roosevelt's bid for another term as president by supporting the incumbent, William H. Taft. Root counseled preparedness as the U.S. readied for World War I and, after the war, supported membership in the League of Nations, with reservations. Along the way, he served in other important capacities, including chairing the convention to revise the state constitution in 1915.

*William H. Seward (Whig/Republican, 1849-1861), a former governor, was a leading opponent of slavery expansion in the 1850s. In an 1858 speech, he asserted that the U.S. had two "antagonistic systems...continually coming into closer contact, and collision results...It is an irrepressible conflict between opposing and enduring forces, and it means that the United States must and will, sooner or later, become entirely either a slave-holding nation, or entirely a free-labor nation."

Seward vocally opposed the federal Fugitive Slave Act, passed in 1850, and set an example for evading it by occasionally letting fugitive slaves shelter at his house in Auburn. Seward helped establish and shape the Republican Party in the late 1850s and was the leading candidate for the party's presidential nomination in 1860. His strident opposition to slavery undermined his candidacy but, when Abraham Lincoln was nominated, Seward campaigned for him. Lincoln appointed Seward as secretary of state and he became one of Lincoln's most trusted confidantes and advisors on war issues, emancipation of slaves, and political strategy. Seward was perhaps second only to Lincoln himself in importance in key policy-making areas.

Chuck Schumer will make his own Senatorial history
In the days ahead, Chuck Schumer, always independent-minded, will strike his own course according to his conscience.

But he can draw on the legacy of previous U.S. Senators from New York -- Seward, for uncompromising, principled stands on issues with social justice and moral dimensions; Root, for appealing to business interests to support responsible public policies; Wagner, for opposing federal policies of neglect and for formulating crisp policy and effective laws; Lehman, for defending the innocent against public bullies; and Moynihan, for political independence, principled positions (even when unpopular in his own party), and skilled bipartisanship.

Of course, Schumer needs to do all of that while at the same time looking out for New York's interests.

History suggests that Chuck Schumer is up to the challenge.

Dr. Bruce W. Dearstyne's latest book is The Spirit of New York: Defining Events in the Empire State's History, published in 2015 by SUNY Press.

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New Urgency in Our City’s Fight for Our Planet’s Future

Costa Constantinides

Council Member Constantinides, the author

As we continue to digest the results of the election, a troubling reality emerges that our core beliefs are under attack. As New Yorkers, we stand in unity with our neighbors, especially Muslim, Latino, and LGBTQ communities across our city.

We are also left with deep disappointment because President-elect Trump has attacked climate change as a hoax. He has pledged to undo American efforts to prevent a global warming catastrophe, including retreat from the Paris Agreement on Climate, Clean Power Plan, and new EPA regulations.

It is clear that our city and other local governments need to lead the way on protecting equality, as well as protecting our planet.

As Chair of the New York City Council's Environmental Protection Committee, I remain focused on making our city greener and more sustainable. We learned four years ago with Hurricane Sandy that the effects of climate change can cause devastating damage to our homes, infrastructure, and places we hold dear. Since then, New York has made great strides in resilience and sustainable building.

With a strong environmental partner in Mayor de Blasio, we have already begun working toward our commitment to reduce our carbon emissions 80% by 2050 and continue to invest in environmental education and programming. The City Council recently passed legislation I sponsored to boost renewable energy including solar, geothermal, and bioheat.

We have also helped encourage sustainable habits such as taking public transportation more and using less air conditioning. Earlier this month, we passed a bill, Intro. 1124, which will encourage more New Yorkers to drive electric vehicles by implementing a pilot program for publicly accessible charging stations.

On Monday, I will chair an Environmental Protection Committee oversight hearing on emissions that come from power plants throughout the city.

It is time for us to be bolder in our efforts to lead on environmental policy, through innovative policies and careful oversight, like the efforts mentioned above.

We have introduced legislation that advocates for environmental justice in our most underserved communities, making New York the first large city in the nation that would have such a commitment.

Knowing that 75% of our emissions come from buildings, we are exploring the use of wind energy in our city, allowing neighbors to tap into the same geothermal energy source to power their own homes, and solar thermal installation on city-owned buildings. New York has already been a worldwide role model in sustainability and we must continue to keep this work a top priority.

Now is the time that we must stand up and fight for our planet’s future.

City Council Member Costa Constantinides represents the 22nd Council District, which includes his native Astoria along with parts of Woodside, East Elmhurst, and Jackson Heights. He serves as Chair the Council's Environmental Protection Committee and sits on six additional committees. On Twitter @Costa4NY.

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The Best Delegate Election Process for a New York Constitutional Convention

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NYS Assembly chamber (photo: MattWade on flickr)

On November 7, 2017, New Yorkers will be asked to vote on whether to call a state constitutional convention. When this question was last on the ballot in 1997 (it’s required to be on the ballot once every 20 years), the most publicized argument not to call a convention was that the convention delegate election process would be dominated by the same interests that dominate New York’s Legislature.

That argument fails to account for the many successes of America’s 236 state constitutional conventions since 1776, including New York’s nine. It also fails to explain why the same special interest groups who would supposedly benefit from a convention will spend millions of dollars opposing one. Except for the fact that incumbent public officials can run as delegates, New York has one of the best delegate election processes among the states. 

But, there is still much room for improvement.  

New York’s Delegate Election Process
New York’s Constitution mandates what’s known as a mixed delegate election system. Of the 204 delegates to be elected, 189 are elected from New York’s 63 state Senate districts (three from each district) and 15 elected at large for the entire state. Crucially, the details of how this mixed system works are left up to the discretion of the Legislature.

The last time the Legislature chose the election details it created a system whereby in each Senate district voters voted up or down for three candidates, and in the at-large election voted up or down for a party-based slate of candidates (see the sample ballot below).


A Better Delegate Election Process
A better mixed system would be built on a foundation of what political scientists call Mixed Member Proportional (MMP), a type of electoral system used in Germany and New Zealand at the national level; and Scotland, Wales, and more than a dozen German states at the regional level. In a 2006 survey, political scientists who specialize in electoral systems ranked MMP as the best family of electoral systems.

Part of the MMP mix would include ranked-choice voting, a type of electoral system used in Ireland and Australia at the national level, and in many U.S. cities at the local level. In 2016, Maine voters approved a ballot initiative to choose the Governor and state Legislature via ranked-choice voting. In the same 2006 survey, ranked-choice voting was ranked the second-best family of electoral systems.

In an MMP system, voters cast two types of votes: one for candidates in their local district, and one for a party. The votes, in turn, count for two tiers of seats: a local candidate tier, and a compensatory tier for parties that didn’t win seats in the candidate vote in proportion to their party vote. Within the constraints of New York’s current constitution, this could work as follows:

In choosing candidates from their local three-member Senate district, voters would rank their preferences rather than vote up or down for each candidate. Such a “ranked-choice” voting system wouldn’t require separate primary and general elections because runoffs are instant. Most important, it wouldn’t penalize voters for voting for their first choice rather than a less preferred candidate with a better chance of winning. With New York’s three-member districts, any district candidate with 25% of the vote plus one would win a district seat, thus strengthening party competition and mitigating the harmful effects of partisan gerrymandering.

The party votes would be used to ensure that the ratio of seats to votes is proportional. For example, assume the Democratic Party gets 49% of the vote, the Republican Party 46%, and an independent party 5%. Under the current delegate election system, the Democratic and Republican parties would most likely win 100% of the seats. But under MMP, the independent party would be entitled to 5% of the overall seats and thus win ten of the fifteen at-large seats, with the balance divided proportionately among the Democrats and Republicans. The result of such compensatory seats is that small parties and political entrepreneurs would have a much greater incentive to compete in the election.

Each party would compile its list of candidates for proportional allocation the way it wanted. For example, a party could add the proportion of a candidate’s district vote (e.g. the number of top-three votes) to the proportion of the party’s district vote to come up with a candidate’s party list ranking. Many other methods could also be used.

When a delegate’s seat became vacant, the party would choose the next name on its list as a replacement. No special election would be held.

Although the 15 at-large, compensatory seats might seem to guarantee a relatively small amount of proportionality, the combination of ranked-choice voting in the three-member districts plus the compensatory seats would lead to a remarkably high degree of proportionality (although having more compensatory seats would be even better).

A state-of-the-art electoral system should provide not only voters, but also parties and candidates, with more options consistent with the principle of political equality and robust public deliberation. Mixed Member Proportional (MMP) combined with ranked-choice voting accomplishes that.

Party-Based Electoral Competition is Good
In the United States, the media teaches the public to think disdainfully of political parties. Consequently, the word “partisan” has become a dirty word. But contemporary democracy is unthinkable without parties, and party labels are an extremely efficient and effective system for educating the public about candidates. MMP offers the best of both party- and candidate-centered elections while radically diminishing the need for public financing of elections.

States have had many democracy enhancing constitutional conventions that were dominated by two-party delegate competition, including New York’s famous state ratifying convention in 1788 that was dominated by Federalists and Anti-Federalists (the Anti-Federalists won the most delegate seats but were eventually convinced to side with the Federalists). The chief worry should not be party but incumbent legislator dominated conventions. Only the latter type of domination violates the core democratic function of a convention, which is to bypass the Legislature’s gatekeeping power over constitutional amendment. Still, using MMP to lower barriers to entry for both parties and candidates would greatly strengthen the delegate election process by providing voters with more meaningful choices.

New York’s past practice of having candidates outside the two major parties run as a slate is a vastly inferior alternative to MMP but probably the best that New York’s Legislature would allow if voters approved calling a convention. Thus, reform groups may focus their efforts on putting together a slate. In 1966, when New York last had a delegate election, such efforts were remarkably successful—albeit still inadequate (7% of the elected delegates were incumbent legislators).

image001Getting to MMP
The politics of improving the delegate election process are admittedly dismal. Legislatures hate conventions because they function as a check on their power, so the last thing they want to do is strengthen the institution. Ditto for the powerful special interest groups that thrive working through the Legislature and thus view a convention as a threat.  

One reason for hope is that federal courts could rule that the delegate election system approved by the Legislature for the three-member districts violates the proportional requirements under Section 2 of the Voting Rights Act. The 1965 Voting Rights Act was passed just before the last delegate election took place in 1966. If the Legislature doesn’t change the type of system it approved in early 1966, it is likely to be sued under that law. That could give the federal courts the ability to design a more proportional electoral system such as single-member districts (the courts’ conventional remedy based on using an up-or-down voting rule) or ranked-choice voting within the constraints of New York’s constitutionally specified three-member districts.

The best long-term hope for meaningful delegate election reform is the political logic of the famous “veil of ignorance” effect regarding democratic reforms that won’t take effect for at least 20 years into the future. The basic idea is that even crassly self-interested convention delegates would have an incentive to support democracy enhancing reforms such as MMP if they wouldn’t take effect until after those delegates would be retired from politics and couldn’t foresee how they would personally benefit from preserving an otherwise inferior status quo.

Most of those using the delegate election process as an argument against calling a convention are using that argument as a pretext for opposition on other grounds. But they do have a point, so those who aren’t using that argument as a pretext should direct their energies to fixing the process either through the Legislature and courts or, if that’s not possible, the next convention.

The U.S. Declaration of Independence asserts that Americans should have an “unalienable” right to “alter” their form of government, including the right to peaceably bypass their legislatures’ gatekeeping power over needed democratic reforms. The inter-generational struggle to protect and enhance this most fundamental of all democratic rights should dwarf considerations of short-term expediency. The cure for the deficiencies of the current process, like democracy itself, is a better process, not the eternal tyranny of the legislature over the constitutional amendment process.

Like all electoral systems, a Mixed Member Proportional (MMP) system with ranked-choice voting is not perfect. But to safeguard our most fundamental of all democratic rights, it would be a great legacy for us to leave to future generations of New Yorkers.

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Housing, Not Handcuffs, Is the Solution to Rising Homelessness

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Urban Pathways residence in Queens (photo via Urban Pathways)

Across the United States, cities continue to adopt laws criminalizing homelessness and poverty as their first line of defense against rising homelessness. According to a 2014 study of 187 U.S. cities by the National Law Center on Homelessness and Poverty, 100 cities have banned sitting or lying down in public places and 81 cities have prohibited sleeping in one’s own vehicle, increases of 43 percent and 119 percent, respectively, since 2011.

Criminalization of homelessness occurs in many forms. Palo Alto, CA made sleeping in one’s own vehicle a crime punishable by a $1,000 fine or up to six months in jail. In June, Saratoga Springs, NY banned sitting or lying on sidewalks. While federal courts increasingly find these laws unconstitutional, cities still adopt them, appeasing some constituents with “tough” measures disconnected from proven solutions to homelessness.

Even for cities like New York that don’t adopt these bans, criminalization persists, with similar consequences for those criminalized. City laws – such as the city transit code prohibition on lying down or taking up more than one seat on the subway - are arbitrarily enforced against those experiencing homelessness. The police also order persons experiencing homeless to “move along” not because there is reasonable suspicion they are engaging in criminal activity but because they are homeless.

Regardless the form, criminalization hurts the person criminalized, policing, taxpayers, and the community. Harm to those criminalized can include a criminal record, fines, or jail, as well as another traumatic experience added to that of being homeless. It impedes community policing, compromising the already attenuated relationship between communities and the police who are to protect and serve them. It is a waste of money, using significant tax dollars for policing and court time, and too often involving the expensive corrections system. Criminalization also accomplishes nothing for the person experiencing homelessness or the city enacting the ordinance, since these laws and their enforcement don’t address the root causes of homelessness. 

It is the central cause of homelessness, the dearth of truly affordable housing, on which we must focus, doing all within our power to constantly protect low-income tenants and facilitate the tenancy of those without access to affordable housing. In New York City this includes strongly enforcing our fair housing laws, including the Human Rights Law’s protection against source-of-income discrimination. We only impede shelter exits when we allow landlords to refuse to rent to a person because they have a Living in Communities rental voucher.

In this spirit, today, the National Law Center on Homelessness and Poverty launches a national campaign advocating for “Housing Not Handcuffs.” The campaign has two principles: 1) To end the homelessness crisis, the criminalization of homelessness must end; and 2) All persons experiencing homelessness should instead have access to affordable housing, education, health care, employment, income, and other opportunities and services that allow all to live with dignity.

Tomorrow -- Wednesday, November 16 -- there will be a New York City launch of the national Housing Not Handcuffs campaign at the City Hall steps. The launch, focusing on homeless criminalization and affordable housing in New York City, will feature speakers including Eric Tars of the National Law Center on Homelessness and Poverty as well as individuals who have experienced homelessness criminalization. We will also launch a survey of those experiencing homelessness about criminalization.

You can get involved in the Housing Not Handcuffs Campaign in several ways: Attend and encourage others to attend the New York City launch on Wednesday; Endorse the national Housing Not Handcuffs Campaign; Encourage those experiencing homeless to complete the criminalization survey; Reach out to the NYC Housing Not Handcuffs Campaign at This email address is being protected from spambots. You need JavaScript enabled to view it..

Let’s end the criminalization of homelessness. Handcuffs are not the solution to homelessness; truly affordable housing is.

Nicole Bramstedt is Policy Director at Urban Pathways. Jeff Foreman is Policy Director at Care for the Homeless. Both organizations serve homeless adults in New York City. On Twitter: @UrbanPathwaysNY & @CFHNYC.

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Fixing New York’s Broken Voting System

gianaris vote better 1

Senator Gianaris, the author

When I went to cast my vote, in the same polling location I have voted all my life, the line was out the door. I’ve never seen it that crowded before. At other polling sites in my district, wait times lasted up to two hours, often scuttling voters' other plans for the day or causing upheaval for families. Observing the chaos, I thought about the 34 states that have already enacted early voting, a process proven to increase voter participation and enhance convenience.

Why hasn't New York adopted this common-sense measure?

The American voting system is known to erect hurdles to participation and discourage voters in too many cases. Aside from the lack of early voting, we have other problems: in New York alone, more than two million eligible citizens are not registered to vote. This is why I introduced the Voter Empowerment Act, which would implement automatic voter registration among other needed reforms.

The enactment of the Voter Empowerment Act would solve problems plaguing our election system. We would automatically register every eligible citizen to vote through the Department of Motor Vehicles and other government agencies. In addition, voters would be able to automatically update their information, we would permit pre-registration of 16- and 17-year-olds, automatically transfer registrations of New Yorkers who move within the state, provide access to voter registration records and registration of eligible citizens online, and remove cumbersome registration deadlines to allow people to register or change their party affiliations later in an election cycle.

It is several sensible and essential pieces that we should pass immediately.

This year’s elections reminded us of the scale of the problem we’re facing. Year after year, New Yorkers become increasingly frustrated with the flaws entrenched in our voting system while too many of our representatives sit idly by. In the last year, Oregon, California, and Vermont became among the first states to approve automatic voter registration, and both President Obama and Governor Cuomo have voiced their support.

In the annual U.S. Election Assistance Commission analysis, New York State is ranked 46th in voter turnout, an embarrassing distinction routinely. We will continue to rank among the worst in the nation if we don’t act.

This rambunctious election captured the attention of millions. It's showroom feel attracted voters to the polls, increasing turnout in New York City from 2.46 million in 2012 to 2.52 million this year.

Unfortunately this was the exception, not the rule, and it’s also not a big enough jump. Too often, average Americans' voices are ignored. Electoral reform is a critical step that would help restore faith in our democracy and give our citizens a bigger stake in their government. By continuing the current outdated system, government has failed to do its part to provide voters with effective methods of convenient registration and voting.

Isolating voters does our democracy no good. The more we expand access to voting, the less we suppress voter participation through our inaction.

On November 8, more than two million New Yorkers were unable to vote for our next President despite being eligible to do so. It is time to eliminate barriers to participation in our democracy and ensure the fundamental right to vote is equally provided to all New Yorkers. I continue to urge every citizen currently registered to continue to get out and vote. We've got to make voting easier, not harder, because your voice matters.

State Senator Michael Gianaris is a Democrat representing Astoria, Long Island City, Sunnyside, Woodside, Ridgewood and Woodhaven in Queens. On Twitter @SenGianaris.

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Enhancing Fairness, Improving Outcomes: The Real Story of Problem-Solving Justice in New York

red hook community justice center

Red Hook Community Justice Center

Do problem-solving courts prevent New Yorkers from receiving their basic constitutional rights? Are defendants forced to make a Faustian bargain, pleading guilty to avoid incarceration when they should be challenging the legality of their arrest?

Steve Zeidman, a professor at CUNY School of Law, thinks so. In “The Treatment Court Cottage Industry & Its Unintended Consequence,” published Oct. 27 by Gotham Gazette, Zeidman argues that problem-solving courts create a “mindset of cooperation among all the institutional players” that prevent defendants from receiving their basic due process rights.

As an illustrative example, Zeidman tells a story (presented as an individual case but actually a composite) of a defendant named “CB” who is arrested for drug possession but wants to fight his case because he believes he was set up by an undercover police officer. Instead of receiving vigorous defense from his attorney, he is pressured to plead guilty in order to enter a drug treatment court. When CB decides instead to fight the legality of his arrest, he is left at Rikers Island, while his case proceeds. To Zeidman, this injustice is repeated again and again with problem-solving courts. “Countless defendants,” Zeidman writes, “stated that their lawyers simply urged them, forcefully, to plead guilty.”

Zeidman’s critique raises several important questions. Why have problem-solving courts proliferated in New York in recent years? What impact have they had? And do they in fact undermine the fairness of the criminal justice system?

The answer to the first question is simple: because they provide a better brand of justice.

Take drug courts, for example. These programs link addicted defendants to treatment in lieu of incarceration. Drug courts are among the most well-researched interventions in the history of American criminal justice reform. A national study underwritten by the U.S. Department of Justice found reduced drug use and crime among drug court participants when compared to defendants who went through regular case processing.

Nor are positive findings restricted to drug courts: researchers have also documented solid results from community courts, re-entry courts, mental health courts, and other alternative-to-incarceration programs. The human implications are enormous – thousands of New Yorkers given a second (and third and fourth) chance in life. Thanks to problem-solving courts, these individuals have been linked to potentially transformative interventions, including mental health counseling, employment training, and youth development programs.

As Vincent Schiraldi and Judith A. Greene noted recently, the number of New York City residents behind bars declined by 31,120 between 1996 and 2014, even as the city’s population increased by one million and crime rates continued to fall.

New York’s problem-solving courts played an important role in this remarkable success. New York’s drug courts demonstrated to policymakers that treatment instead of incarceration wasn't just notionally the right thing to do -- it actually makes a difference in the lives of defendants. That’s why the New York court system has made such a large institutional investment in these programs under the stewardship of the last three state chief judges. And that’s why Governor David Paterson, when announcing the reform of the Rockefeller Drug Laws, chose to do so at the Brooklyn Treatment Court. Closer to home, the Mayor’s Office has trumpeted the role that problem-solving programs have played in reducing the Rikers population.

In the aggregate, problem-solving courts have achieved demonstrably better outcomes for the clients that Zeidman purports to represent. But they have done more than just this. The research also suggests that they have actually improved the process as well, increasing defendant perceptions of fairness.

Many researchers are coming to the conclusion that the active ingredient in problem-solving courts, the element that makes them work better than conventional courts, is procedural justice.

Procedural justice is an idea, developed by Yale Law School professor Tom Tyler, that suggests that how defendants are treated is just as important, if not more, than the outcome of their cases. By treating defendants with dignity and respect – and communicating with them in plain language – courts can not only improve public perceptions of justice, they can promote voluntary compliance with the law.

This idea was tested most recently in Red Hook, Brooklyn, where my agency helped to develop the Red Hook Community Justice Center in partnership with the court system, the DA’s Office, and local defense attorneys. In Red Hook, we have altered the atmospherics of the criminal justice system in some fundamental ways: eliminating the bars in holding cells, shrinking the height of the judge’s bench so that he can look most defendants in the eyes, and improving signage so that court users understand how to navigate the building. The Red Hook judge, Alex Calabrese, also takes pains to ensure that defendants understand their obligations to the court and praises participants when they succeed in alternative programs.

Researchers from the National Center for State Courts conducted an independent evaluation of the Red Hook justice center, tracking participants in the program over the course of three years. It found that Red Hook reduced recidivism among both juvenile and adult defendants. It also found that Red Hook had improved perceptions of justice – defendants preferred Red Hook to the regular criminal court. This quote from a defendant was typical:

I went to Brooklyn Criminal Court before Red Hook, horrible place, horrible. They should do a tour there, just so people could see. I wouldn't wish that place on my enemy. Red Hook is 100 times better...[The Red Hook judge] allows you to speak...he likes to interact and get your opinion. I don't get the feeling that he's one of those judges that looks down on people. To me, he's fair, I'll put it that way. The court officers treat you like a person too, not like that other court over there. I learned that there's two different types of ways that courts treat people. You have these obnoxious goons and then you have those that look at you like, ‘ok, you made a mistake.’

Zeidman may be wrong on the merits, but he raises important warnings. Defense attorneys need to play an active role in the development and operation of problem-solving courts. And the structure of these courts should not exacerbate the coercive nature of the criminal justice system.

But make no mistake: if we want to continue to reduce the use of incarceration while preserving public safety, we don’t need to halt problem-solving courts – we need to spread the lessons from these programs as far and as wide as we possibly can.

Greg Berman is the director of the Center for Court Innovation. On Twitter @GregBerman50 and @courtinnovation.

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New York’s Broken Approach to Drug Arrests and Prosecutions

nypd appreciation night

(photo via @NYPDnews)

Tyrone Tomlin was standing outside of a deli holding a soda and drinking straw when two police officers from Brooklyn North Narcotics arrested him for possession of drug paraphernalia. The officers asserted that, “based on their training and experience,” Tomlin possessed an item commonly used to package heroin -- the drinking straw. An Assistant District Attorney took the officers at their word and recommended bail, which Judge Laura Johnson set at $1,500 cash. Tomlin didn’t have the $1,500 and was sent to Rikers Island.

Junior Weems was arrested by two undercover officers who asserted that, “based on their training and experience,” Weems had possessed cocaine and intended to sell it. A prosecutor requested bail, which Judge Jane Tully set at $2,000 insurance company bond or $1,000 cash; like Tomlin, Weems told the judge he didn’t have funds to make bail and he too was sent to Rikers Island.

But neither Tomlin nor Weems (whose name has been changed) actually possessed any drugs, a fact that was only verified by the New York Police Department (NYPD) laboratory after each had spent days incarcerated at Rikers Island. Both cases were eventually dismissed, but considerable harm had already been done. Just one day in jail can mean the loss of job, housing, or even parental custody; plus exposure to the horrors and dangers of NYC jails, which have been well documented.

These stories are not unique, unfortunately. More than 20,000 people were arrested for misdemeanor drug possession (excluding marijuana, which is a separate offense) in New York City in 2015, making it the fourth most common arraignment charge citywide. In 2015 alone, Brooklyn Defender Services represented more than 2,000 people – three quarters of whom were black or Latino – whose most serious charge was possessing trace amounts of a drug other than marijuana. The difference between felony and misdemeanor drug possession is weight.

A deeper look into the data shows how fraught many of these low-level cases are, in part because they deal with amounts of substances, either illegal or not, that are so tiny that they are often difficult to identify. Meanwhile, although corroborating lab results are required shortly after arraignment for prosecutors to secure an indictment for a felony, similar due process protections for misdemeanors do not exist. The operating notion is that police officers’ “training and experience” is good enough -- despite evidence that they get it wrong frequently -- and many cases resolve through plea deals before the evidence is even accurately tested.

Of the 2,091 Brooklyn Defender Services cases we reviewed, a full 25 percent -- 534 cases -- were eventually dismissed because the drug lab returned a result contradicting the officers’ “training and experience;” or because they involved an illegal search; or due to other reasons.

Nearly 300 Brooklyn Defender Services clients accused of misdemeanor drug possession (non-marijuana) had bail set, nearly all of whom spent at least some time at Rikers Island. Another 741 defendants pled guilty at arraignments, sometimes to a lower charge. While we cannot say for certain how many people did so under coercion from the prospect of bail and jail, we know anecdotally that many people in cases like this plead guilty -- regardless of guilt or innocence -- simply to avoid more jail time. Everyone arrested and booked in New York City spends around 24 hours locked up in NYPD custody, before even seeing a judge. 

At a time when public opinion nationwide favors treating drug use as a public health issue, we must stop and ask why these problematic arrests and incarcerations, which do not improve public safety, are happening in the first place. In some of these cases, people are arrested and incarcerated even when they do not actually possess illegal drugs. In cases when a person possesses drugs in an amount so small that it can’t be identified properly, should we really be sending them to Rikers Island -- interrupting their life and introducing collateral consequences that can haunt them for years after? 

Ultimately, the simple possession of all drugs, especially in amounts so small they are routinely misidentified, should be fully decriminalized in New York State, as Human Rights Watch eloquently argues in its recent report “Every 25 Seconds.”

As an interim measure, the State Legislature should immediately take action to amend court procedural rules to include due process protections for people accused of possessing small amounts of drugs -- for example by requiring a lab report to hold anyone in custody longer than 24 hours and prohibiting District Attorneys from making recommendations about bail other than release when a lab report is absent. District Attorneys, with an ever-growing mandate to do justice, could resolve the issue immediately by declining to prosecute these cases.

The Mayor of New York City should require the police department to end its prioritization of these arrests, and to limit enforcement only to cases with a clear public safety justification. This aligns with the New York City Council’s work under the 2015 Criminal Justice Reform Act.

The City Council should adopt legislation that would require District Attorneys and the NYPD to report on drug possession cases where an officer’s “training and experience” was contradicted by lab results. These officers should, at minimum, be required to undergo retraining, and repeat offenders should be disqualified from making street-level arrests.

In this time of national reckoning over mass incarceration and the drug war, New York -- both City and State -- have an opportunity for leadership. It’s time for a change.

Melissa Moore is the deputy state director of the New York policy office of the Drug Policy Alliance. Nick Malinowski is the Community Advocacy Coordinator at Brooklyn Defender Services. On Twitter @mooremeliss and @nwmalinowski.

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Time for New York Schools to Get the Lead Out

city school PS

With National Lead Poisoning Prevention Week coming to a close, it’s important to reflect on the work needed to reduce our children’s exposure to lead and prevent its serious health effects. Over the past year, the nation has watched a tragedy unfold in Flint, Michigan, as an entire community’s drinking water was contaminated with lead. But the problem extends well beyond Flint. In nearly 2,000 communities in every state across the country, tests have confirmed lead in the water coming out of residents’ taps. In fact, lead is even contaminating drinking water in schools and pre-schools, right here in New York.

It’s time to take the steps necessary to eliminate this serious health risk.

Lead is highly toxic, and it’s especially damaging to kids – impairing how they learn, grow, and behave. Lead can also cause high blood pressure, and even damage the nervous system and kidneys. According to the American Academy of Pediatrics, our kids will cumulatively lose an estimated 23 million IQ points from lead exposure – mostly due to a high number of children exposed to low levels of lead.

Yet tests have confirmed that schools in New York City, Westchester, Long Island, and New York’s Capital Region have had lead in the water flowing from their faucets or fountains. And in all likelihood, that is just the tip of the iceberg. Most schools in New York have at least some lead in the pipes, plumbing, or fixtures that deliver the water our children drink. And where there is lead, there is risk.

Medical and public health experts are unanimous: there is no “safe” level of lead for our children. The Environmental Protection Agency (EPA) and the Centers for Disease Control (CDC) agree, yet water utilities are only required to take action when tests show lead in drinking water at 15 parts per billion in 10 percent of results. 

Fortunately, some progress is being made in New York to get lead out of drinking water. Last month, Governor Cuomo signed landmark legislation, which includes the toughest lead contamination testing standards in the nation, and mandates that schools across the state test drinking water for lead contamination. While this is a good first step, more work is needed to ensure that our children are truly protected from lead contamination in schools’ water.

Given the threat to our children’s health, it’s time for New York to “get the lead out.” Ideally, this means pro-actively removing lead-bearing parts from schools’ drinking water systems – from service lines to faucets and fountains – and installing certified filters at taps and fountains used for drinking or cooking. At the very least, schools should regularly and properly test all water outlets used for drinking or cooking and immediately remove from service those where the water contains any lead. Schools should also provide the public with easy access to specific testing data and the status of remediation plans.

And of course, we need to remove the lead contamination threat not just in schools but throughout our communities. In September, Congress took a first key step to help communities do just that. The U.S. Senate version of the Water Resources Development Act includes money for Flint, as well as a small grant program for communities here in New York and across the country to remove lead pipes and otherwise reduce risks of lead contaminating our water, plus $20 million for schools to test for lead. Congress should quickly approve this funding when it returns after Election Day.

Additionally, the New York Legislature should match it with state funds in the spring.

School is where our children go each day to learn and develop. It’s time for our leaders to “get the lead out” before it’s too late.

Heather Leibowitz, Esq. is the Director of Environment New York, a statewide advocacy organization. On Twitter @EnvNY.

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A Fair Chance for Two Million New York City Jobseekers

rally fair chance act

A rally for the Fair Chance Act (photo: Andrew Bowe, National Employment Law Project)

For almost two million New Yorkers, the Fair Chance Act, a city law passed one year ago, represents opportunity. The law helps level the playing field during the job application process for the nearly one in three city adults with an arrest or conviction record.

For people attempting to support their families after an encounter with the criminal justice system, moving on isn’t easy. The stigma of a record can follow someone for a lifetime, casting a shadow that obscures the applicant’s skills in the eyes of potential employers. When employers inquire about arrest and conviction records up front, those applications with the box checked—indicating “yes, I have a record”—frequently end up in the trash. Applicants who check the box are half as likely to get a callback as those who don’t—one-third as likely if the applicant is black.

After Brooklyn native Jason Grant left prison, he checked the box on lots of job applications. He didn’t receive callbacks. “It was definitely frustrating,” he says. For over a year, he got only construction gigs—one of a few industries historically more open to hiring workers with records. The work was intermittent and took a toll on his body. Long periods between jobs made it nearly impossible to provide for his son.

This year, things changed for Jason and millions of New Yorkers. Thanks to the Fair Chance Act, the conviction-record checkbox on job applications is gone. In other words, the city “banned the box.” All public and private sector employers must now postpone any record inquiries until the final stages of the hiring process—after they have extended a conditional job offer.

In addition to banning the box, the law requires that if employers run a background check and it turns up positive, they must consider the age of any offense, its job relevance, and evidence of rehabilitation. They must provide the applicant with notice, a copy of the record, and an opportunity to respond and correct any inaccuracies. The employer may rescind the offer after following that process. (Applicants who observe violations can report them to the NYC Commission on Human Rights.)

Referred to collectively as fair-chance hiring, these safeguards were born out of state and federal anti-discrimination law

After the Fair Chance Act, Jason found a stable job that he loves at Architectural Grille, a modern manufacturing plant specializing in metal products. “I like challenges...I get to learn something new. These are million dollar, intricate, complex machines,” Jason said.

Fred D’Antoni, who found Jason through the Center for Employment Opportunities, says hiring Jason was a good choice. “He was just so motivated and thankful for the opportunity...Such great potential.” And he says his experiences hiring other workers with records have been similarly positive.

Jason realizes he is lucky. Nearly one in three American adults—disproportionately people of color—has an arrest or conviction record, and many must still check the box when they apply for a job.

But the tides are changing. New York is one of 14 cities and counties (and nine states) to have banned the box for all employers. The District of Columbia adopted a fair-chance law in 2014 and has since hired 33 percent more people with records. After Richmond, Virginia banned the box in 2013, approximately one in four people eligible for city hire had a record—and most got a job.

Despite positive gains, opponents cite two recent studies criticizing ban-the-box. They say the policies result in increased discrimination against applicants of color because employers assume they are likely to have a record. But as one economist noted, the studies are unconvincing. The results actually demonstrate increased hiring and callbacks for most people with records. Where gains are flat for young men of color, the studies show that racial discrimination in hiring is deeply entrenched. Instead of undoing a policy that works, we should strengthen it with a full jobs agenda and targeted anti-discrimination efforts to address these biases.

In the end, the data is only one part of the story. For workers like Jason, stable employment can be the difference between making it or not after contact with the justice system.  Having a place to live, supporting your family, a sense of purpose—these all flow from a job. The Fair Chance Act is changing lives for the better, and New Yorkers—both employers and employees—should be proud to have one of the strongest fair-chance laws in the nation.

Beth Avery is a staff attorney at the National Employment Law Project (NELP) and works to promote fair-chance employment and opportunities for workers with records across the nation.

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‘October Surprises’ Rock Presidential Campaigns: A New York History

FDR third termer

FDR 1940 campaign button (image: @FDRLibrary)

The tumultuous 2016 presidential campaign will soon be over. This year may set a record for "October Surprises," unexpected revelations and events that grab media attention, jar the campaign, and alter candidates' prospects. It may be fitting that it is two candidates who call New York home having it out over these final, fitful days.

For Donald Trump, it has been a series of major shocks -- evidence that he did not pay federal income tax for at least several years, sexually aggressive comments on a 2005 recording, and a dozen women coming forward to claim he sexually harassed or assaulted them.

For Hillary Clinton, the unexpected developments have been milder, e.g., revelations of e-mails from her campaign staff about political tactics and speeches to business groups setting forth positions that seem to be at variance with some of her current campaign positions.

Another "surprise" of sorts was the news that came out on October 24 that premiums for health-plan coverage sold through, commonly known as Obamacare, will increase sharply next year. Clinton has endorsed Obamacare but vowed to fix it. Trump has promised to repeal it. And the FBI’s late October announcement of a new avenue in the investigation into her email server when Secretary of State has thrown yet another surprise into the campaign.

"October Surprises" can determine the outcome of a presidential race. In particular, they can sway undecided voters. Their impact can be particularly significant if they come late in the campaign, grab public attention, and leave the affected candidate with little time to react or respond.

In the 1940 presidential campaign, an "October Surprise" sprung by Democratic President Franklin D. Roosevelt in New York City demoralized his opponent, Republican Wendell Willkie, and altered voters' perceptions of him. It is one of several over the course of U.S. presidential history.

An Unprecedented, Shaky Republican Presidential Campaign
Willkie resembled Trump in some ways. A former Democrat and businessman without political experience, he had secured the nomination away from seasoned Republican leaders, including U.S. Senators Robert Taft and Arthur Vandenberg. He distrusted the Republican establishment, replaced the chair of the Republican National Committee with his own choice, Representative Joseph Martin (who was also minority leader in the House of Representatives), but kept the RNC at arm's length, running his campaign mostly through a campaign staff assembled by Russell Davenport, an editor on leave from Fortune magazine. Business interests and the business press supported Willkie.

But Wilkie’s campaign was erratic. He couldn't resist making quips and off-the-cuff comments to reporters that were sometimes at odds with his official campaign positions. They were somewhat comparable to Trump's tweets, which capture media attention. Republican regulars grew disenchanted with their candidate and many turned their backs on him, concentrating on Senate and House races. Willkie reciprocated, showing indifference or even contempt toward his adopted party. He didn't coordinate his campaign with his vice presidential running mate and party regular, Oregon Governor Charles McNary, somewhat analogous to the way that Trump and Mike Pence sometimes seem to be out of sync in this campaign.

Sometimes, Willkie parked his campaign train, the Willkie Special, on sidetracks outside of cities overnight to avoid having to share the stage at campaign rallies with Republican leaders. In an unfortunate remarked picked up by the press, he referred to some of his party's leaders as "boll weevils."

Willkie endorsed most of FDR's reform program known as the New Deal but claimed it cost too much and, as a businessman, he could administer it more efficiently than Roosevelt. Willkie had at first supported FDR's position of aiding Great Britain in its struggle against Germany at the beginning of what would evolve into World War II, including endorsing a deal the president made to exchange aging American destroyers for British bases. But toward the end of the campaign, Willkie reversed himself, said the deal should have had Congressional review and approval, and asserted that FDR would get the nation into the war. Willkie's inconsistent messages and his flip-flopping on the issue of aid to Britain undermined his campaign.

But as the election neared, Wilkie seemed to find new energy and determination. His attacks on the president became more pointed. He seemed to be picking up momentum and support.

FDR's Witty October Surprise
FDR's re-election campaign was humming along in the fall but needed an energizing boost by the end of October to ensure a victory over Willkie. The veteran New Yorker chose a New York audience at a political rally at the stellar New York public meeting place, Madison Square Garden, on the evening of October 28 to deliver the best speech of the campaign. In those days, Madison Square Garden was the most prominent forum in the nation, and the place for presidential candidates to give their most important speeches because of coverage by New York newspapers and other media.

The President was fired up after a day of campaigning. "I have had a wonderful day in New York, in all five boroughs," he began.

After discussing his record on domestic policy and national defense, he turned to ridicule Willkie and the Republicans for inconsistency on defense preparedness. "For almost seven years the Republican leaders in Congress kept on saying that I was placing too much emphasis on national with their eyes on the good old ballot box, they are charging that we have placed too little emphasis on national defense." It reminded him of the popular song "The Daring Young Man on the Flying Trapeze" as Republican politicians did "somersaults or trapeze acts" for political gain. It was a record of "timidity, of weakness, of short-sightedness," the president declared.

He cited Republican opposition to defense appropriation bills and singled out three Congressional reps in particular. One was Massachusetts Rep. and House Minority Leader Joseph Martin, who was also the chair of the Republican National Committee whom Willkie had installed. The other two were New Yorkers. One was Bruce Barton, who represented a district just north of the city, in Rockland and Westchester counties, and who was running for a seat in the U.S. Senate in 1940. The other was Hamilton Fish III. A scion of a politically active family -- his grandfather, the first Hamilton Fish, had been a New York governor, U.S. Senator, and Secretary of State -- Fish III represented FDR's home area, Dutchess County, and had been a particularly incessant critic.

It was safe and tempting to attack these two upstate New York Republicans before a primarily New York City audience. They made particularly good targets because they had also opposed many of Roosevelt's New Deal measures to combat the Depression as well as his foreign policy.

FDR gave their full names the first time he mentioned them in the speech but, the second time, shortened it to the euphonious term "Martin, Barton, and Fish!" The third time, the crowd shouted the three names with him. In Boston a few nights later, he returned to the theme of Republican obstructionism. Each time the president mentioned Martin the crowd completed the chant with "Barton and Fish!"

"Martin, Barton and Fish!" Throws Willkie Off Stride
Democrats across the nation took up the rollicking chant of "Martin, Barton and Fish!" in the closing days of the campaign.

Martin did not respond. But the New York targets of FDR's jab did. Barton told an audience the day after FDR's speech that "the New Deal has concentrated every effort to make you forget its failure at home by focusing your thoughts and fears on the tragic events abroad."

Fish fumed in a November 1 letter to The New York Times that "the Democratic Party has become the party of intervention and war and the Republican Party that of nationalism, national unity" and that FDR's "reckless and provocative statements" would get the nation into the war. But their protests did little good. FDR had sprung the "Martin, Barton and Fish!" slogan too late for their responses to get traction in the media.

It was an immensely clever political move. FDR had pivoted from attacking Willkie to tying him to unpopular positions leaders in his party had taken. Willkie really had no responsibility for what they had espoused. He knew Martin but there is no evidence he had even met Barton and Fish. But FDR's new political tack threw his campaign off stride.

Like FDR, Willkie chose to finish his campaign in New York, at Madison Square Garden, on November 2. It was his last chance to connect with the electorate. But the candidate was weary by then, his audience was subdued, and his message was bland.

He indicated agreement with much of the New Deal but criticized FDR for doubling the national debt to pay for it. FDR's programs had added too many bureaus, boards, and commissions, constituting "a deadweight structure of bureaucracy."

"Not once has he stimulated the expansion of enterprise or of American industry," Willkie asserted, and in fact FDR had fanned the flames of public distrust by criticizing the business community for its opposition to taxes and what it saw as overregulation.

FDR's lust for a third term as president was dangerous. Willkie did not offer concrete proposals or a pervasive rationale for voting for him as the alternative, though.

Willkie praised Martin for his work on the presidential campaign but did not refer to Martin's campaign for reelection to Congress in Massachusetts. Barton and Fish were not mentioned.

The candidate did not address FDR's assertion that Willkie's party was obstructionist and even unpatriotic because of its opposition to military preparedness.

Willkie, disheartened by the president's clever campaign tactic, had given up hope of winning. He later remarked that when he heard the president hang the obstructionist votes of Martin, Barton, and Fish on him, he knew he would lose the election.

He did lose on Election Day. Of course, many factors contributed to FDR's victory. A proven leader who was popular with Americans, FDR probably would have won anyway, but the president's "Martin, Barton, and Fish!" ploy helped sink Willkie's candidacy by finding a new way to ridicule and attack it -- in effect, through guilt by association.

It also helped the Democrats retain majorities in both houses of Congress.

Beyond The ‘October Surprise’
Willkie joined a New York City law firm, served as an informal diplomat for FDR in the early years of World War II, and tried again for the Republican nomination in 1944, but found little support. He died later that year.

As for Martin, Barton, and Fish? Martin was easily re-elected to the House, serving until 1966, including two years as Speaker. Barton lost his bid for the Senate. He returned to work at a public relations and marketing firm he had helped establish, Batten, Barton, Durstine & Osborn. (The firm, now called BBDO, still operates in New York City). Fish coasted to victory and stayed in Congress until 1945.

The whole episode shows the power of a clever turn of phrase to refine or even redirect the political debate. For voters worried about whether the nation could continue to climb out of the Great Depression and about the prospects of being drawn into war, the witty phrase from their good-natured, confident president was reassuring.

Distilling a campaign into a catchy new slogan in the last weeks of the contest is mild compared to some of the harsh October Surprises we have had his year. There may even be more to come, e.g., more revelations about Russian interference in the campaign. Sometimes, October Surprises mostly devolve into footnotes in history books. But in other cases, they can tip a close race one way or another.

Dr. Bruce W. Dearstyne's latest book is The Spirit of New York: Defining Events in the Empire State's History, published in 2015 by SUNY Press.

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